Sheela Joseph vs Njarakkal Grama Panchayath
2023 Latest Caselaw 7811 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
  WEDNESDAY, THE 26TH DAY OF JULY 2023 / 4TH SRAVANA, 1945
                     WP(C) NO. 21877 OF 2021
PETITIONER:

         SHEELA JOSEPH,
         AGED 58 YEARS
         W/O. M.V. JOSEPH, MULAVARIKKAK (HOUSE),
         ASHOKAPURAM (POST), ALUVA, ERNAKULAM DISTRICT, PIN
         683 101.
         BY ADV JESWIN P.VARGHESE

RESPONDENTS:

    1    NJARAKKAL GRAMA PANCHAYATH,
         NJARAKKAL (P.O), ERNAKULAM DISTRICT, PIN-682 505,
         REPRESENTED BY ITS SECRETARY.
    2    THE SECRETARY
         NJARAKKAL GRAMA PANCHAYATH, NJARAKKAL (P.O),
         ERNAKULAM DISTRICT, PIN-682 505, REPRESENTED BY
         ITS SECRETARY.
    3    THE CHIEF TOWN PLANNER,
         CIVIL STATION BUILDING, KAKKANADU (POST),
         ERNAKULAM DISTRICT, PIN-682 030
         BY ADVS.
         SHRI.M.N.SANJITH, SC, NARAKAL GRAMA PANCHAYAT
         ADVOCATE GENERAL OFFICE KERALA

OTHER PRESENT:

          SR.GP - BIMAL K.NATH


    THIS WRIT PETITION (CIVIL) HAVING BEEN
FINALLY HEARD ON 26.07.2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C). No.21877 of 2021      :2:



                          VIJU ABRAHAM, J.
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                       W.P.(C). No.21877 of 2021
         --     -- -- -- -- -- -- -- -- -- -- -- --
                   Dated this the 26th day of July, 2023

                             JUDGMENT

The petitioner is the absolute owner of 1.220 Ares (3.01462

Cents) of garden land comprised in Re. Sy. No.8/453/16 in

Njarakkal Village which was obtained by her by way of a Sale Deed

executed in her favour and registered as Document No. 989/2021

of SRO Njarakkal dated 23.07.2021. The petitioner has effected

mutation in her favour and remitted basic land tax as per Ext.P1.

Ext.P2 is the Possession Certificate issued by the Village Officer.

The petitioner intends to construct a commercial building in the

said property after availing a loan from the Bank and thereupon

the petitioner submitted Ext.P3 application for building permit

before the 2nd respondent. The said application was returned back

as per Ext.P4 stating that it violates Rule 26(4) of the Kerala

Panchayat Building Rules, since as per the structural plan for the

Kochi City front yard should be 10.5 metres and as per the drawing

it is only 3 metres. The petitioner submits that the Town Planning

Act,1108 ME is now repealed by the Kerala Town and Country

Planning Act, 2016(in short the Act, 2016) wherein the existing

scheme is protected under Section 113(2) of the said Act. As

regards the acquisition of the property, Section 67(1) of the Act,

2016 stipulates that a decision will have to be taken within a period

of two years from the introduction of the Act, which is 17.03.2016.

The petitioner submits that no decision has been taken in this

regard as mandated in Section 67(1) of the Act. In the said

circumstances, the petitioner contended that the defect noted in

Ext.P4 is no longer available to the respondents for returning her

application for the issuance of building permit. The petitioner also

submits that this Court has considered an identical issue in respect

of a similarly situated person and as per Ext.P5 judgment issued an

order to the effect that the Panchayat should take a decision within

60 days from the date of receipt of the copy of the judgment, as to

whether the Panchayat is intending to acquire the property of the

petitioner and if not, the building permit application submitted by

the petitioner therein shall be considered in accordance with law.

Reliance is also placed on the judgment in W.P.(C) No.10201/2023

dated 03.06.2023 in respect of the very same Panchayat wherein

the court held that since the scheme has become obsolete, they

cannot rely on the said scheme to reject the application for

building permit.

3. Heard the learned Standing Counsel appearing for

respondents 1 and 2 and the learned Government Pleader.

4. It can be seen that the new Act came into force in 2016 and

as stipulated in Section 67(1) of the said Act, no decision has been

taken by the Panchayat for acquiring land for any development

activities. The petitioner also relies on Ext.P7 communication

issued by the 2nd respondent intimating that they are not intending

to acquire the said land. The learned standing counsel for

respondents 1 and 2 would submit that on receipt of the acquisition

request made by the petitioner, the same was forwarded to the

Government and the Government has given a reply bearing

No.RD2/17/2023/LSGD dated 15.05.2023 wherein it is intimated

that the land in question is not required for compulsory acquisition

and therefore, the provisions of the Act does not apply. In view of

the above facts and circumstances, I am of the view that the

rejection of the application for building permit as per Ext.P4 is not

sustainable. Therefore, Ext.P4 is set aside with a consequential

direction to respondent Nos. 1 and 2 to reconsider Ext.P3

application for building permit submitted by the petitioner in

accordance with law and a decision shall be taken in this regard

within a period of one month from the date of receipt of a copy of

this judgment, after affording an opportunity of being heard to the

petitioner.

With the above said directions, the writ petition is disposed

of.

Sd/-

VIJU ABRAHAM JUDGE

sm/

APPENDIX OF WP(C) 21877/2021

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE TAX RECEIPT ISSUED BY VILLAGE OFFICER, NJARAKKAL VILLAGE DATED 13.08.2021.

Exhibit P2 THE TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY VILLAGE OFFICER, NJARAKKAL VILLAGE DATED 18.08.2021.

Exhibit P3 A TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT DATED 03.09.2021.

Exhibit P4 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT (UPLOADED IN THE SITE) DATED 25.09.2021.

Exhibit P5 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.C NO. 5111/2018 DATED 01.02.2019.

Exhibit P6 A TRUE COPY OF THE NOTICE (PURCHASE NOTICE) ISSUED TO 1ST RESPONDENT PANCHAYAT BY THE WRIT PETITIONER U/S 67 (1) OF KERALA TOWN AND COUNTRY PLANNING ACT, 2016 DATED 14.7.2022 Exhibit P7 A TRUE COPY OF LETTER NO.SC4-1664/22 ISSUED BY 2ND RESPONDENT DATED 1.8.2022. Exhibit P8 A TRUE COPY OF DECISION NO.6(1) TAKEN BY 1ST RESPONDENT PANCHAYAT DATED 26.7.2022. RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF DECISION OF THE PANCHAYAT COMMITTEE OF NARAKKAL GRAMA PANCHAYAT DATED 17/11/2022